James Bryce Osmond v The Queen
[2013] VSCA 285
•7 October 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0075
| JAMES BRYCE OSMOND | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, PRIEST and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 7 October 2013 |
| DATE OF JUDGMENT | 7 October 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 285 |
| JUDGMENT APPEALED FROM | DPP v Nguyen & Anor (Unreported, County Court of Victoria, Judge Cotterell, 15 April 2013) |
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CRIMINAL LAW – Appeal – Sentence – Armed robbery, attempted armed robbery, theft, common law assault, damaging property and possessing imitation firearm – Total effective sentence of 6 years 2 months’ imprisonment – Non-parole period of 4 years – Sentencing judge erred in ordering the non-parole period to commence after the unexpired portion of a prior sentence – Whether judge erred in the application of the principle of totality – Youthful offender – Real risk of institutionalisation – Leave to appeal granted – Appeal allowed – Re-sentenced to 5 years 8 months’ imprisonment with a non-parole period of 3 years 3 months – Mill v The Queen (1988) 166 CLR 59 applied – Sentencing Act 1991, ss 15, 17.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Ms E McKinnon | Cameron Marshall & Associates |
| For the Crown | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I will invite Coghlan JA to deliver the first judgment.
COGHLAN JA:
The applicant James Bryce Osmond pleaded guilty to the charges set out below and was sentenced as follows on 15 April 2013.
Charge on Indictment Offence Maximum Sentence Cumulation 1 Theft [Crimes Act 1958 s 74(1)] 10 years [Crimes Act 1958 s 74(1)] 4 months 1 month 2 Possessing an imitation firearm [Control of Weapons Act 1990 s 5AB(2)] 2 years or 240 penalty units [Control of Weapons Act 1990 s 5AB(2)] 8 months 1 month 3 Armed robbery [Crimes Act 1958 s 75A(1)] 25 years [Crimes Act 1958 s 75A(2)] 3 years Base 4 Attempted theft [Crimes Act 1958 ss 74(1) and s 321M] 5 years [Crimes Act 1958 ss 74(1) and s 321M] 12 months 4 months 5 Damaging property [Crimes Act 1958 s 197(1)] 10 years [Crimes Act 1958 s 197(1)] 4 months - 6 Armed robbery 25 years 3 years 6 months 7 Armed robbery 25 years 3 years 6 months 8 Theft 10 years 12 months 3 months 9 Theft 10 years 12 months 3 months 10 Attempted armed robbery [Crimes Act 1958 ss 75A(1) and s 321M] 20 years [Crimes Act 1958 ss 75A(2) and 321P] 2 years 6 months 11 Common law assault 5 years [Crimes Act 1958 s 320] 9 months - 12 Common law assault 5 years 9 months - 13 Theft 10 years 12 months 3 months 14 Attempted armed robbery 20 years 2 years 5 months Total Effective Sentence: 6 years 2 months’ imprisonment Non-Parole Period: 4 years’ imprisonment commencing on 3 July 2013
Pre-sentence Detention Declared: N/A 6AAA Statement: A total effective sentence of 7 years 9 months’ imprisonment with a non parole period of 5 years and 6 months. Other orders:
- Disposal order.
- Disqualified from obtaining any licence or permit for a period of 4 years.
By notice dated 17 May 2013 the applicant seeks leave to appeal against those sentences on the following proposed grounds:
1.The sentencing judge erred in applying the principle of totality, so that the total sentence was excessive.
2.The sentencing judge erred in not giving sufficient weight to the applicant’s personal circumstances, including:
(a)his age; and
(b) unfortunate background.
The offending was set out in the Summary of Prosecution Opening which became Exhibit A on the plea.
Between 7:30am and 8:20pm on the 19th of June 2012, OSMOND attended Lalor Railway Station. He removed the registration plates from a Honda Euro Sedan (registration WHE 260) which was parked in the carpark. The number plates belonged to victim David CALVISI. (Charge 1 -Theft)
On the 24th of June 2012, OSMOND drove a Honda Civic sedan bearing the stolen registration plates to an address in Craigieburn. He picked up NGUYEN and they left the premises.
At about 4:19am, victim Abdullah ZAATITI parked his Holden Commodore sedan in the driveway of his home at 10 Macauley Drive, Craigieburn. He was standing behind his car, when he noticed the Honda Civic parked out the front of the house.
OSMOND got out of the driver's side of the Civic and approached ZAATITI.
OSMOND stated “Buddy, come here for a sec.” (p.48) ZAATITI walked over to OSMOND and OSMOND produced an imitation handgun and pointed it at ZAATITI's forehead. OSMOND racked the handgun twice and said “Give me your keys.” (p.48). ZAATITI, fearing that he would be shot, handed the keys to OSMOND. OSMOND told ZAATITI that if he called police, he would kill him. He yelled at ZAATITI to try and start the car. OSMOND then grabbed ZAATITI by back of the neck with his left hand, whilst still holding the gun in his right hand, pointing it to the side of ZAATITI's head. ZAATITI was terrified. OSMOND pushed him aside and got into the driver's seat of the Commodore.
OSMOND made several attempts to start the Commodore but was unsuccessful.
He eventually got out of the Commodore and walked over to the Civic. ZAATITI noticed that there were two males in the Civic. OSMOND got back into the Civic and drove away in possession of the keys to the Commodore. ZAATITI noticed that the Civic's left rear tyre was flat and the rim was grinding on the road. (Charge 3- Armed robbery) (Charge 4- Attempted theft)
A short time later at about 4:25am, victim Adam HARDING was driving his Proton S16 sedan (Northern Territory registration 970 736) along Grevillia Street, Craigieburn. As he turned into Waterview Boulevard, he noticed a car travelling very closely behind him. As he continued along Waterview Boulevard towards Craigieburn Road, he observed a Honda Civic overtake at a fast speed. The Civic was being driven by OSMOND, with NGUYEN in the passenger seat. Once the Civic was in front of him, he noticed sparks coming from the rear left rim.
All of a sudden, OSMOND braked forcefully and stopped the Civic in front of HARDING's car, turning the Civic to the right to block HARDING. This caused HARDING to brake forcefully in order to stop his car. OSMOND then got out of the Civic holding the handgun in his right hand. HARDING saw the gun and tried to drive away but panicked and his car stalled. OSMOND walked up to HARDING and pointed the handgun at him, yelling “Get out of the car, get out of the car, hurry up and get out of the car.”
As HARDING started undoing his seatbelt, OSMOND smashed the driver's side window of HARDING's car with the butt of the handgun. HARDING saw OSMOND pull the top of the handgun back and heard a metallic rasp as it slip back forward. After seeing this, HARDING believed that the gun was real. OSMOND then pointed the handgun at HARDING and said “Get out, get out, get out.” HARDING replied “Relax, it's ok. It's all yours. You can have it.” HARDING took his backpack from the front passenger seat and quickly got out of his car.
HARDING walked to the side of the road and heard OSMOND yelling to NGUYEN, “Go, go, hurry up, go.” (p.54) NGUYEN got into the driver's side of the Civic and drove away. OSMOND then got into the Proton. He pointed the handgun at HARDING and said “Give me your wallet or I'll blow your fucking head off.” HARDING took his wallet out of his backpack, walked over and handed the wallet to OSMOND. OSMOND then closed the car door and drove away. (Charge 5- Damaging property) (Charge 6- Armed robbery)
NGUYEN drove the Civic a short distance away down Waterview Boulevard and abandoned the car. He was then met by OSMOND who was driving the stolen Proton. NGUYEN got into the passenger side of the Proton and they drove away.
At about 4:30am, OSMOND and NGUYEN drove to the Hume Global Learning Centre on Central Park Avenue in Craigieburn. The victim, Mohsin JAVED was performing security duties at the premises at the time. JAVED parked his Suzuki Baleno sedan (registration PUG 303) in the carpark near the front door. Whilst sitting in his car, he saw the stolen Proton, being driven by OSMOND, driving into the carpark. He noticed that there were four males in the car.
JAVED got out of his car and stood next to it. OSMOND parked a few metres away and told JAVED that he had broken his car. JAVED asked OSMOND if he could help him and OSMOND did not answer. OSMOND then walked quickly towards JAVED. When he was about two metres away, he produced the handgun and pointed it at JAVED. OSMOND said to JAVED “Give me the keys.” JAVED replied “What.” OSMOND said “Give me to the keys.” JAVED again replied “What."”
OSMOND then racked the handgun and pointed it towards the right hand side of JAVED's head. JAVED then said “Here's the keys.” (p.62) and handed over a lanyard containing all of the Global Learning Centre keys and his swipe card to the building. OSMOND then demanded money and JAVED gave him his wallet.
OSMOND then got into the Baleno and called out to NGUYEN and the other two unidentified males, who were seated in the Proton. NGUYEN and the males then got into the Baleno. OSMOND called JAVED over to the Baleno. JAVED walked to the car and gave OSMOND his car keys, which were on a lanyard with a key ring. OSMOND, NGUYEN and the two males then drove away in the Baleno. (Charge 7 -Armed robbery)
All of the victims rang “000” shortly after the incidents and police attended the scenes.
The stolen Proton was recovered by police. Located in the car were two mobile phones on the rear passenger seat which belonged to OSMOND and NGUYEN.
The Civic was recovered by police. Located in the car were fingerprints belonging to OSMOND and NGUYEN and DNA belonging to OSMOND.
Between 7:00am and 7:20pm on the 271h of June 2012, OSMOND attended Lalor Railway Station. He stole a Nissan Vector sedan (registration EPD 800) which was parked in the carpark. The vehicle belonged to victim Jeff TURNER. (Charge 8- Theft)
Between 9pm on the 21st of June 2012 and 5:00am on the 28th of June 2012, OSMOND and NGUYEN attended a private carpark at 40 Holmes Street in Brunswick East. They stole a Nissan 300ZX (registration INRSNT) which was parked in the carpark. The vehicle belonged to Nancy CAMPBELL. (Charge 9- Theft)
At about 9:00pm on the 28th of June 2012, OSMOND and NGUYEN drove the stolen 300ZX to a Milk bar located at 69 Mackie Road in Bentleigh East. OSMOND was driving and parked the car around the corner. OSMOND got out of the car and told NGUYEN to wait for a few minutes and then drive the car to the front of the Milk bar. OSMOND then walked towards the Milk bar.
OSMOND entered the Milk bar wearing a balaclava and armed with the handgun. He approached the front counter and confronted victim Hong JIANG, pointing the handgun at her. She was very scared and yelled out, fearing that she would be shot OSMOND went straight to the cash register and JIANG yelled “Someone is trying to get the money.” (p.101)
JIANG's husband, Jianlin YANG was sitting in the dining area attached to the shop with his cousin, Guoxuan ZHU. YANG heard JIANG yelling and ran out into the shop and approached OSMOND. OSMOND then pointed the handgun at his chest YANG believed that the handgun was real.
ZHU ran out into the shop and assisted YANG. YANG “chopped” and held onto OSMOND's arm with which he was holding the handgun. He then wrestled with OSMOND. ZHU grabbed hold of OSMOND's arm and as his did so, OSMOND bit him on the left ear, causing a laceration and bleeding. JIANG took the balaclava off OSMOND's head. YANG managed to get behind OSMOND and place him in a bear hug under his arms, forcing OSMOND to put his arms up into the air. OSMOND then hit YANG to his head with the handgun, causing bruising and soreness to his head. JIANG bit OSMOND on the hand and eventually wrestled the gun from him.
OSMOND then broke free and ran out of the shop. JIANG, YANG and ZHU chased OSMOND outside OSMOND got into the stolen 300ZX which was being driven by NGUYEN. They then drove away. (Charge 10- Attempted armed robbery) (Charges 11 & 12 - Common assault).
The balaclava was later subjected to DNA examination. DNA belonging to OSMOND was found on the mouth region of the balaclava.
The imitation handgun was later found to be unregistered. During the period of offending, OSMOND was not the holder of a firearms licence and was a “prohibited person” pursuant to Section 3 of the Firearms Act 1996. (Charge 2 -Being a prohibited person in possession of an imitation firearm = between dates charge encompassing the possession of the imitation firearm in Charges 3 to 12).
At about 9:40pm, OSMOND was driving the stolen 300ZX with NGUYEN in the Melbourne CBD. He performed several burnouts at the corner of King Street and Dudley Street. OSMOND and NGUYEN then abandoned the car and caught a taxi in King Street. They then returned to Lalor in the taxi. Their images were captured by a camera located in the taxi.
A witness observed OSMOND and NGUYEN abandoning the stolen 300ZX and called “000”. Police attended the scene and found registration plates from the stolen Vector and the keys and a lanyard stolen from JAVED inside the 300ZX.
At about 6:40am on the 29th of June 2012, OSMOND and NGUYEN drove the stolen Vector to the BP Service Station at 35 Gisborne Crescent, Reservoir. OSMOND got out of the car and NGUYEN moved to the driver's side and drove the car away.
Parked nearby was a Toyota Hilux (registration OTG 974) with the keys in the ignition and the engine running. The owner, Henry COLE was inside the service station making a purchase. OSMOND got into the Hilux and drove away. Police were then contacted. The incident was captured by CCTV cameras located at the service station.
OSMOND drove the stolen Hilux to 58 Ayr Crescent in Reservoir and parked it in the driveway. NGUYEN followed him in the stolen Vector. OSMOND left the Hilux and left the scene with NGUYEN in the Vector. (Charge 13- Theft)
At 7:30am, OSMOND was driving the stolen Vector along Hughes Parade in Reservoir with NGUYEN. OSMOND lost control of the car and crashed into a fire hydrant and pole outside Top Fuel Service Station at 97 Hughes Parade. OSMOND got out of the car and ran from the scene. NGUYEN got out of the car and was approached by witness Louie CHOUEIRI, who was working at the service station. CHOUEIRI took NGUYEN into the service station and assisted him. CHOUEIRI then contacted police and an ambulance and both arrived a short time later.
At approximately 12:30pm on the 15th of July 2012, OSMOND attended Alexander Avenue Milk Bar located at 128 Alexander Avenue in Thomastown. He was wearing a Melbourne Football Club jacket. The victims Chi and Phung TRUONG were working in the Milk bar at the time.
OSMOND was served by Phung TRUONG and purchased a small quantity of lollies. Another customer entered the store and OSMOND left. He then attended Foodworks Supermarket nearby and walked up and down the aisles.
At about 1:OOpm, OSMOND returned and walked into the Milk bar. He approached Phung TRUONG who was sitting behind the front counter and asked her if he could look at birthday cards. Chi TRUONG was nearby. Phung TRUONG stood up and walked over to the birthday cards stand which was at the end of the counter. As TRUONG was assisting OSMOND with the cards, OSMOND turned to her, produced a large kitchen knife and pointed it at her. Chi TRUONG picked up a lyre lever from behind the counter, stood in front of his wife and pointed it at OSMOND, yelling at him to “get out.”
OSMOND then went to walk out of the store but then turned around and came back towards Chi TRUONG. TRUONG raised the lyre lever and OSMOND ran at him, grabbing the tyre lever and pushing TRUONG into the birthday card stands, causing him to fall onto the ground.
Chi TRUONG yelled at Phung TROUNG to call police. OSMOND then ran out of the store and away from the scene. (Charge 14- Attempted armed robbery)
Police were contacted and attended the scene a short time later.
The incident was captured by CCTV cameras located at the Milk bar. OSMOND was also captured by CCTV cameras at Foodworks.
…
At about 4:30am on the 18th of July 2012, OSMOND was located by police walking along High Street in Northcote. He was arrested and taken to Richmond Police Station where he was interviewed in relation to Charges 1 to 13. When asked whether he knew anything about the allegation that he was in the Craigieburn area at about 4:20am on the 24th of June 2012, he stated “No, I can't remember shit. Like I've been using drugs a bit, you know. Given me a bad memory and that.” He later denied that he was in Craigieburn. (Q&A 17; 69 to 82) He made admissions in relation to Charge 13 and stated “Yeah, that's all I've done.” He stated that he was with somebody on that night and declined to name him. He stated further that he was on “ice”. (Q&A 50 to 68). He denied being in possession of the handgun, stating “I don't even know what kind of gun it is. I haven't had a gun since- since like '07 and '06.” (Q&A 113) He stated that he had never touched a black handgun. (Q&A 117) He stated that he had only worn a balaclava when he was a kid. (Q&A 119) He otherwise gave “no comment” answers or stated that he could not remember when the allegations were put to him.
It should be noted at the outset that the learned sentencing judge was in error in purporting to order that the sentence imposed by her was to commence on 3 July 2013. It has been conceded on this hearing that her Honour's error was material and it was further submitted that it would be open to this Court to re‑sentence the applicant in all the circumstances, particularly having regard to the non-parole period. I would regard the concession made by counsel for the respondent in the circumstances as being entirely appropriate.
Her Honour made that order because she assumed that the applicant would be required to complete the sentence which he was then serving as the uncompleted portion of the sentence of 22 months for which he had been on parole at the time of sentence. That uncompleted sentenced was 11 months and 17 days. At the time of sentence he had served all but two months and eight days of that sentence.
Because of the operation of ss 15 and 17 of the Sentencing Act 1991, the applicant began to serve the non-parole period which had been imposed by her Honour on the day of sentence. Whether he will ultimately have to serve that unexpired portion of the earlier head sentence will depend upon the parole board. It does follow that the applicant will be eligible for release on parole after serving four years from the date of sentence which appears to be some two months and eight days less than her Honour thought he would have to serve before being eligible for parole.
Had it not been for the concession made on the application, I would, in any event, have been of the view that the principles of totality had been offended in this case as will become clear in my reasons below. I would grant leave and allow the appeal.
Ground 1 – Totality
For the purposes of totality the learned sentencing judge was obliged to treat the applicant as though he might have to serve the whole of the sentence she was to impose together with the unexpired portion of his parole. It was clear enough that her Honour understood that she was accumulating the two sentences.[1]
[1]R v Piacentino (2007) 15 VR 501.
If the applicant is not released on parole he will be liable to serve the head sentence imposed by her Honour plus the whole of the uncompleted sentence (11 months and 17 days). That period of incarceration would date from the date on which the applicant went back into custody being 20 June 2012.
As a general sentencing consideration, her Honour was also obliged to have regard to the 11 months which the applicant had served before being released on parole but not strictly as a matter going to totality but rather as a consideration of the recent history of the applicant and going to the issue of institutionalisation.
It was submitted on behalf of the applicant that the learned sentencing judge had not had proper regard to the principle of totality as set out in Mill v The Queen[2] where the High Court said,
The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.
See also Ruby, Sentencing, 3rd ed. (1987), pp. 38-41. Where the principle falls to be applied. in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
[2](1988) 166 CLR 59, 62-63.
The principle was further explained by Redlich JA[3] in Azzopardi v The Queen, where he said,
The rationale underlying the principle is that a ‘just measure’ of an offender’s total criminality is a sentence which satisfies all sentencing objectives applicable to the entirety of that criminal conduct. Only implicitly in all of the statements of the principle of totality in its application is the proposition that a sentencing judge undertaking the adjustment of the sentence does so in order to ensure that the final sentence is no more than is necessary to satisfy the various objectives of sentencing. Considerations of mercy may further influence the sentencing judge to increase any downward adjustment. As Wickham J was to recognise in Magee v The Queen the sentence should be no longer ‘than is necessary to meet the various purposes of criminal punishment.’ Once the aggregate sentence satisfies both the mitigatory sentencing objectives as well as the punitive principles of just punishment, retribution, denunciation, deterrence and protection of the community, ‘that it is enough’. Wickham J also opined that ‘[m]ore than enough is wrong because the excess is not only purposeless but might be harmful.’ Anderson J expressed similar views in Herbert v R.
One explanation for why it is ordinarily only necessary to order that the offender serve a portion of each multiple count to produce a proportionate sentence which satisfies all relevant sentencing principles may be that articulated in Fox and Freiberg on Sentencing and by Malcolm CJ in Clinch v The Queen, that the severity of a term of imprisonment is an exponential, not a linear function. The severity of the sentence increases exponentially as it increases in length. Once the sentence satisfies the punitive and mitigatory sentencing objectives for the offender’s overall conduct, the sentence is then proportionate to the offender’s criminality. No justification then exists for a more severe sentence, proportionality and just deserts defining the outer limits of punishment.[4]
[3]With whom Coghlan and Macaulay AJJA agreed.
[4](2011) A Crim R 369, 388 [61]-[62] (citations omitted).
It is submitted that having regard to the fact that the applicant had to serve this sentence cumulatively upon the unserved portion of his earlier sentence, the applicant’s age, disadvantaged background, early plea, and that the offending had largely taken place over five days, the established principles of totality have been breeched.
The respondent properly submits that the commencing date for the present sentences had been fixed in error. It is submitted that when the totality of the offending was considered the principles of totality had not been infringed.
As is apparent from the summary, the offending was very serious. The three armed robberies committed between 4.00am and 5.00am on 24 June 2012 were particularly frightening. Although the applicant went around with an imitation pistol, he used it in a way to create an impression that the pistol was real and intending that victims be terrorised by his use of it. The smashing of the car window (charge 6) was also calculated to gratuitously frighten the victim. In relation to that offending there was some preplanning in that the number plates used on the Honda Civic were stolen in advance.
The next offending on 28 June commenced with the theft of a motor car (charge 9). The attempted armed robbery later on 28 June was also with the imitation pistol and the applicant was only unsuccessful because of the bravery of the shopkeeper and his cousin.
They were both assaulted. They managed to take the applicant’s imitation pistol away from him. The applicant’s possession of that imitation pistol led to the charge of being a prohibited person in possession of a firearm (charge 2).
Still on 28 June 2012 the applicant stole a motor vehicle from a service station while the owner was paying for petrol. He took the vehicle to his home. On the morning of 29 June 2012 the applicant crashed the car which had been stolen from the Lalor railway station.
On 15 July 2012 the applicant attempted another armed robbery and with a large kitchen knife. He was resisted by the shopkeepers but pushed the male shop- keeper over before fleeing.
The applicant was arrested on 18 July.
The offending principally falls into two groups:
·that between 4.00am and 5.00am on 24 June 2012 (charges 3–7); and
·that between 8.00am on 27 June 2012 and 7.00am on 28 June 2012 (charges 8–13).
It follows that a predominant amount of the offending was committed over five days.
It is true that the fact that offences are committed over a short period of time may in certain circumstances enable them to be treated as a single transaction and it would be appropriate to order such sentences to be served concurrently.
This is not such a case. In this case each of the armed robberies and attempted armed robberies are discrete transactions with separate victims. These are matters which have to be taken into account. In general her Honour approached her sentencing task in accordance with that principle. The head sentence on each of the armed robberies of three years, and two years in relation to the attempted armed robberies, appears moderate having regard to the nature of the offending and the applicant’s history for dishonesty offences and the fact that this offending was committed while he was on parole.[5]
[5]R v Stevens [2009] VSCA 81.
All of the other sentences appear to be moderate. Since her Honour could not take the thefts into account as part of the armed robberies,[6] it was appropriate to accumulate something for that offending. The same has to be said for the discrete charges of theft. The only other accumulation was for the charge of the applicant being a prohibited person in possession of a firearm. The conduct relating to that charge was largely subsumed in the three armed robberies and the first attempted armed robbery.
[6]See R v Newman & Turnbull (1997) 1 VR 146.
On this ground the question is whether or not the total effective sentence ordered to be served cumulatively upon the unexpired portion of the earlier sentence contravenes the principle of totality. In that regard the applicant’s youth is important but as the above analysis indicates, this was very serious offending.
The applicant may have to serve a total of just over 6 years 4 months imprisonment. He will be eligible for parole after serving 4 years 7 months.
It is accepted by the respondent and it is the fact that the applicant’s background has been very difficult and it may go someway to explaining why he has been in trouble with the law. The applicant is shown as first offending when he was 16. He has now appeared before the Children’s Court and Magistrates’ Court on numerous occasions. He has been sentenced to be detained in a Youth Justice Centre and ultimately in adult prison and he was on parole at the time of this offending. He has been released on suspended sentences which he has breached. He has a very strong record of abusing the use of motor cars. The predominant offending has been for burglary, theft and having stolen goods.
Nearly all the sentences he has served have involved a very high degree of concurrency. His record suggests a long history of drug taking and offending to support his habit and that is what is put on the plea.
The learned sentencing judge assessed the prospects of rehabilitation as ‘sound’ which in the circumstances was a reasonably favourable finding.
It has long been accepted that when dealing with youth offenders rehabilitation is the principal purpose of sentencing. That proposition has to be looked at in the context of the individual and in particular what chances the offender has had in the past. It is probably more important when the person is a candidate for custody for the first time and again when a candidate for custody in an adult prison. The applicant has been in both youth and adult custody.
The position of offenders such as the applicant was summarised by Redlich JA when he said in Azzopardi v The Queen:
The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[7]
[7]Supra, [44].
The question under this ground is whether the sentence as a whole is too long when balancing the applicant’s youth against all the other needs of sentencing. I am of the view that, when taking the ‘last look’ as described by Thomas, in Principles of Sentencing[8] in the passage which was approved by the High Court in Mill v The Queen[9] and is set out above, the present sentence falls into that category.
[8]2nd ed (1979) pp 56–7.
[9]Supra.
When the structure of the sentence, the individual sentences and the degree of accumulation is looked at, not much complaint can be made about the sentence. It is only in the name of totality that error can be found. The fact of the matter is that the applicant might, from the time he went into custody in July 2012, have to serve a total of just over seven years and that he would not be eligible for parole until he has served a total of 4 years 7 months. There must be in the case of the applicant a real risk of institutionalisation.
Ground 2 – Insufficient regard to youth and background
This ground could have succeeded only if it could be demonstrated that the sentence was manifestly excessive.
In any event, I doubt that this level of disadvantaged background of the applicant can be compared with that of offenders in cases such as R v AWF.[10]In addition it had not been urged on the sentencing judge that she should regard the material in that way.
[10](2000) 2 VR 1.
Her Honour did have regard to both the applicant’s age and disadvantaged background. It is reasonable to observe that an adult without a similar background would have received a much more severe sentence for this offending.
Since I would allow the appeal on ground one, a more detailed analysis of this ground is unnecessary.
Conclusion
The applicant is young and this may well be the last chance he has to show that, if he becomes drug free, he can have a more rewarding life in the future to the benefit of both himself and the community. The sentence I propose takes into account the fact that the head sentence and non-parole period must reflect the seriousness of the offending. I propose a sentence in which the non-parole period is reduced by slightly more than the head sentence. I would re-sentence the applicant as follows.
Charge on Indictment Offence Maximum Sentence Cumulation 1 Theft [Crimes Act 1958 s 74(1)] 10 years [Crimes Act 1958 s 74(1)] 4 months 14 days 2 Possessing an imitation firearm [Control of Weapons Act 1990 s 5AB(2)] 2 years or 240 penalty units [Control of Weapons Act 1990 s 5AB(2)] 8 months 14 days 3 Armed robbery [Crimes Act 1958 s 75A(1)] 25 years [Crimes Act 1958 s 75A(2)] 3 years Base 4 Attempted theft [Crimes Act 1958 ss 74(1) and s 321M] 5 years [Crimes Act 1958 ss 74(1) and s 321M] 12 months 2 months 5 Damaging property [Crimes Act 1958 s 197(1)] 10 years [Crimes Act 1958 s 197(1)] 4 months - 6 Armed robbery 25 years 3 years 6 months 7 Armed robbery 25 years 3 years 6 months 8 Theft 10 years 12 months 2 months 9 Theft 10 years 12 months 2 months 10 Attempted armed robbery [Crimes Act 1958 ss 75A(1) and s 321M] 20 years [Crimes Act 1958 ss 75A(2) and 321P] 2 years 6 months 11 Common law assault 5 years [Crimes Act 1958 s 320] 9 months - 12 Common law assault 5 years 9 months - 13 Theft 10 years 12 months 2 months 14 Attempted armed robbery 20 years 2 years 5 months Total Effective Sentence: 5 years 8 months’ imprisonment Non-Parole Period: 3 years 3 months’ imprisonment Pre-sentence Detention Declared: 175 days 6AAA Statement: A total effective sentence of 7 years 5 months’ imprisonment with a non parole period of 5 years.
MAXWELL P:
I agree. I would only add this. In my opinion, counsel are to be commended for the clarity and succinctness of their oral submissions. I also agree with what Coghlan JA has said about the Crown’s concession. It was, in my opinion, entirely appropriate and of considerable assistance to the Court.
PRIEST JA:
I agree, for the reasons given by Coghlan JA, that the application for leave to appeal ought be granted and the appeal allowed.
I also wish specifically to associate myself with the further remarks falling from the learned presiding judge.
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